Citation Nr: 0515973
Decision Date: 06/14/05 Archive Date: 06/21/05
DOCKET NO. 02-09 081 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the veteran's claim for entitlement to service
connection for hepatitis.
2. Entitlement to service connection for a chronic prostate
disorder to include prostate cancer.
3. Entitlement to an increased (compensable) evaluation for
malaria.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
INTRODUCTION
The veteran had active service from January 1969 to November
1971 and was in the Republic of Vietnam from November 15,
1969 to December 24, 1970. The veteran's collateral service
documentation reflects that while with the 173rd Airborne
Brigade, he was in Bong Song, Quin Yong, and the jungle of
the Central Highlands.
His awards included the Air Medal, the Combat Infantryman's
Badge and the Parachute Badge; he was a light weapons
infantryman.
This appeal to the Board of Veterans Appeals (the Board) is
from actions taken by the Department of Veterans Affairs (VA)
Regional Office (RO) in Waco, Texas.
The veteran also has service connection for post-traumatic
stress disorder (PTSD) for which a 100 percent rating has
been assigned since December 17, 1999.
The veteran has, however, in prior actions been found to be
legally competent. A recent memorandum is in the file
recommending that he be found incompetent, but formal action
has apparently not been taken thereon.
The RO initially denied the veteran's claim for service
connection for hepatitis in March 1972 on the basis that it
was not of record. In 1997, when the veteran endeavored to
reopen his claim, the RO confirmed that denial on the basis
that no new and material evidence had been presented to
reopen the claim. Since then, the veteran has again
endeavored to reopen his claim.
The RO has basically addressed the current claim as if it had
been reopened. However, the Board notes that, in accordance
with the United States Court of Appeals for Veterans Claims
(the Court) ruling in Barnett v. Brown, 8 Vet. App. 1 (1995),
whether a previously denied claim should be reopened is a
jurisdictional matter that must be addressed before the Board
may consider the underlying claim. See Barnett v. Brown, 83
F.3d 1380 (Fed. Cir. 1996).
Therefore, regardless of the RO's action or whether the RO
based its determination on that issue, the Board must
initially address the question of whether "new and material"
evidence has been presented sufficient to reopen the claim of
service connection for hepatitis. 38 U.S.C.A. § 5108 (West
1991); 38 C.F.R. § 3.156(a) (2004).
Except for the issue relating to hepatitis, the other issues
are being remanded and are addressed in the REMAND portion of
the decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Adequate evidence is now of record for an equitable
resolution with regard to the issue relating to hepatitis.
2. The evidence submitted since the last final denial of the
veteran's claim for service connection for hepatitis is new
and material, bears directly and substantially on the
specific matter, and is so significant that it must be
considered in order to fairly decide the merits of the claim.
3. Evidence and medical opinion reflect that hepatitis was
reasonably incurred in service.
CONCLUSIONS OF LAW
1. New and material evidence has been submitted to reopen
the RO's final denial of service connection for hepatitis.
38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 2003); 38
C.F.R.§ 3.156 (2004).
2. Hepatitis was incurred in service. 38 U.S.C.A. §§ 1110,
1154, 5103; 38 C.F.R. § 3.303 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matters
Certain revisions have been effectuated with regard to the
obligations placed upon VA for providing notice and
assistance in development of evidence, and in other areas.
See the Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), and implementing regulations
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004).
Some development has been undertaken herein. With regard
only to the issue of hepatitis, and primarily because of the
action taken herein, the Board is satisfied that adequate
development has taken place and there is a sound evidentiary
basis for resolution of this issue at present without
detriment to the due process rights of the veteran.
New and Material
Criteria
Pursuant to 38 U.S.C.A. § 7104(b), a decision by the RO may
not thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered. The exception
to these rules is described under 38 U.S.C.A. § 5108, which
provides that "[i]f new and material evidence is presented or
secured with respect to a claim which has been disallowed,
[VA] shall reopen the claim and review the former disposition
of the claim." Therefore, once a decision has been issued
and once a rating decision becomes final, absent the
submission of new and material evidence, the claim cannot be
reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7104(b);
7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir.
1996).
"New and material evidence" means evidence not previously
submitted to agency decision makers, which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative or redundant, and which by itself
or in connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see Fossie v. West, 12 Vet. App. 1, 4 (1998); Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998).
New evidence is considered to be material where such evidence
provides a more complete picture of the circumstances
surrounding the origin of the veteran's injury or disability,
even where it will not eventually convince the Board to alter
its decision. See Hodge, 155 F.3d at 1363.
When determining whether the veteran has submitted new and
material evidence to reopen a claim, consideration must be
given to all the evidence since the last final denial of the
claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans,
the Court indicated that the newly presented evidence need
not be probative of all the elements required to award the
claim, but need only tend to prove each element that was a
specified basis for the last disallowance. Id. at 284.
The reopening standard calls for judgments as to whether new
evidence (1) bears directly or substantially on the specific
matter, and (2) is so significant that it must be considered
to fairly decide the merits of the claim. See Fossie v.
West, 12 Vet. App. 1 (1998). Some evidence may well
contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability
and is, therefore, new and material. See Hodge v. West, 155
F.3d 1356, 1363 (Fed. Cir. 1998). If no new and material
evidence is presented to reopen the claim, the prior denial
remains final. See 38 U.S.C.A. § 7105.
The evidence submitted since the final denial last
effectuated by the RO addresses, in part, the veteran's
diagnosis of hepatitis in service and as such, relates to the
core of the basic question involved. The case is reopened.
Service Connection
Criteria
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to disease so diagnosed when the
evidence warrants direct service connection. See 38 C.F.R. §
3.303(d).
When service connection is thus established for a secondary
condition, the secondary condition shall be considered a part
of the original condition. 38 C.F.R. § 3.310(a) (2004).
This regulation has been interpreted by the Court to allow
service connection for a disorder which is caused by a
service-connected disorder, or for the degree of additional
disability resulting from aggravation of a nonservice-
connected disorder by a service-connected disorder. See
Allen v. Brown, 7 Vet. App. 439 (1995).
Whether a veteran has submitted sufficient corroborative
evidence of the claim in-service stressors is a factual
determination. See Pentecost v. Principi, 16 Vet. App. 124
(2002).
The Board has the responsibility to assess the credibility
and weight to be given to the competent medical evidence of
record. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood
v. Derwinski, 1 Vet. App. 190, 192-93 (1992); see also
Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).
It is also noted that in this as in any other case, it
remains the duty of the Board as the fact finder to determine
credibility in any number of other contexts, whether it has
to do with testimony or other lay or other evidence. See
Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Lay
individuals may not render medical conclusions, see Espiritu
v. Derwinski, 2 Vet. App. 492 (1992); however , a lay
statement may be made which relays the visible symptoms of a
disease or disability or the facts of observed situations or
circumstances, see Caldwell v. Derwinski, 1 Vet. App. 466,
469 (1991), after which a decision must be made as to the
credibility thereof in the context of probative medical
evidence, see Rowell v. Principi, 4 Vet. App. 9, 19 (1993).
In any event, the Board has the duty to assess the
credibility and weight to be given the evidence.
Following the point at which it is determined that all
relevant evidence has been obtained, it is the Board's
principal responsibility to assess the credibility, and
therefore the probative value of proffered evidence of record
in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995);
see Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden
v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases
cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993);
Hensley v. Brown, 5 Vet. App. 155, 161 (1993); see also
Sanden v. Derwinski, 2 Vet. App. 97, 100 (1992);
In determining whether documents submitted by a veteran are
credible, the Board may consider internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498,
511 (1995); see also Pond v. West, 12 Vet. App. 341, 345
(1999) (Observing that in a case where the claimant was also
a physician, and therefore a medical expert, the Board could
consider the appellant's own personal interest); citing
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding
that while interest in the outcome of a proceeding "may
affect the credibility of testimony it does not affect
competency to testify." (citations omitted).
The Court has held that the Board is prohibited from reaching
its own unsubstantiated medical conclusions. See Colvin v.
Derwinski, 1 Vet. App. 171, 175 (1991).
And when the medical evidence is inadequate, the VA must
supplement the record by seeking an advisory opinion or
ordering another medical examination. Hatlestad v.
Derwinski, 3 Vet. App. 213 (1992).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Factual Background and Analysis
Service medical records are very limited. However, even
those few original records in the file reflect that the
veteran was diagnosed with and seen for treatment of the
following: amebic dysentery; group C salmonellosis; malaria,
Plasmodium vivax, proven by blood smear; repeated bouts of
diarrhea [with a history of amebic dysentery but without
clear-cut indication that one or more other episodes were due
thereto]; anorexia and fever, malaise, trouble swallowing and
slight lymphadenopathy with neck stiffness; and "food
poisoning".
On a VA Form 21-4138, dated January 4, 1991, and entered into
the file in January 1972, the veteran reported that he had
come down with hepatitis about 9 days before, since coming
home, and had been receiving care from a private physician in
Texas. [The veteran was separated from service in November
1971]. Records from that physician were not acquired.
On VA examination in March 1972, the veteran reported a
history of hepatitis, specifically citing a date of Christmas
1971 [the month after service separation] when he first
developed significant symptomatology. Liver function tests
were undertaken and recorded in the file. He was also noted
to have a history of malaria and amebic dysentery. With
regard to his current symptoms, he was having nocturnal
nausea but no vomiting or food intolerance. He had not had
undue fatigue but was said to have had a weight loss. The
most he had weighed in the prior year was 149, and he weighed
136 1/2 on examination.
On VA outpatient report dated in December 1982, the veteran
was reported to have had hepatitis while in service in 1971
and had had some slight flare-ups since then. His complaints
included liver problems which had surfaced when he had had
recent surgery on his hand. Clinical reports showed that he
had had demonstrated increases in SGPT and SGOT test results.
A statement is of record from JRP, M.D., dated in October
1982, to the effect that liver function tests in his office
showed alkaline phosphatase elevation as well as SGPT, LDH
and SGOT elevations. Liver biopsies were not felt to be
necessary. He diagnosed either chronic persistent hepatitis
or chronic active hepatitis, only the former of which would
require continuing treatment. The findings had been compared
with those from Methodist Hospital and these appeared
unchanged.
A VA clinical report from December 1982 showed that chronic
hepatitis was to be ruled out. Another notation at about the
same time was that he had had malaria twice while in Vietnam,
and that a VA outpatient facility in Lubbock had diagnosed
chronic hepatitis in December 1971.
Hepatitis C was diagnosed on VA examinations in November
1999, October 2000, December 2000, January and February 2001
and April 2003. There is a history of substance and/or
alcohol abuse. Some recent clinical reports show that he has
apparently been sober and abstinent for some time but others
seem to reflect that he may still be using substances
including alcohol.
On VA examination in November 2001, the examiner dismissed
the veteran's claim that he had had hepatitis at the time of
separation from service, and concluded that his hepatitis C
was unrelated to service but provided no basis for that
opinion.
The Board finds that the evidence is not unequivocal in this
case as to what is currently causing the veteran's primary
liver problems. Nonetheless, that aspect of the case does
not take on any significant relevance to the issue of whether
he did or did not acquire the first evidence of hepatitis in
service and whether that has been present as an underlying
and chronic disorder since then.
In that regard, as documented in contemporary medical
records, hepatitis was clearly present in the waning months
of service and at the time of and shortly after separation
from service, and it has continued as a chronic problem to
the present. A doubt is raised which is to be resolved in
his favor, and service connection for hepatitis is granted.
ORDER
New and material evidence has been submitted; the claim is
reopened for service connection; and service connection is
granted for hepatitis.
REMAND
At the time of the veteran's initial claim, filed in November
1971, he reported a history of having had both malaria
Plasmodium Vivax and malaria Falciparum, for which he got
treatment on repeated occasions while in Vietnam in May and
June 1970. As noted above, he was identified as having
malaria on smears.
On VA outpatient evaluation in December 1982 the veteran had
some questions as to a liver biopsy. A physician at another
VA facility purportedly had decided not to do a liver biopsy
for the hepatitis or malaria, but that the veteran was to be
followed regularly as to the status of the edges of his
liver, etc.
On VA examination in November 1999, benign prostatic
hypertrophy was diagnosed. His PSA was then ".78".
The veteran argues that he has symptoms of malaria, and that
he has prostate cancer, for which service connection is
presumptively warranted due to Agent Orange exposure.
He has not been given appropriate examinations to determine
either.
The veteran's malaria is rated under Code 6304. Effective
August 30, 1996, new rating criteria for malaria were
promulgated, and codified under 38 C.F.R. § 4.88b; Diagnostic
Code 6304.
Under the prior rating criteria for malaria, a 10 percent
rating contemplates recently active malaria with one relapse
in the past year; or old cases with moderate disability. A
30 percent rating contemplates recently active malaria with 2
relapses in past 6 months; or old cases with anemia. 38
C.F.R. § 4.88b, Diagnostic Code 6304 (prior to August 30,
1996).
With respect to the rating of malaria, the regulations state
that in rating disability from malaria, once identified by
clinical and laboratory methods, or by clinical methods alone
where the disease is endemic, the clinical course of the
disease, the frequency and severity of recurrences, the
necessity for and the reaction to medication, should be the
basis of evaluation, not the presence or absence of
parasites. When there have been relapses following the
initial course of treatment, further relapses are to be
expected and for some time the veteran must be given the
benefit of the doubt as to unexplained fever of short
duration, controlled by medication specific for malaria. 38
C.F.R. § 4.88.
Two notes to rating code 6304 provided very specific guidance
for the rating of service-connected malaria disabilities.
According to the first note, the evaluations under Code 6304
are to be assigned on the basis of dates and frequency of
recurrences and relapses and severity of significant
residuals, if any, based on the clinical records of the
service department or other acceptable evidence relating to
the period of service, or on medical evidence relating to the
period after discharge, recording sufficient clinical
findings, when considered in accordance with all other data
of record, to support the conclusion that there exists a
compensable or higher degree of disability from malaria.
Hereafter, service connection will not be conceded based on
notation in service records of history alone furnished by the
veteran, nor will compensable ratings be assigned based on
the veteran's unsupported claim or statement; however,
determinations heretofore made will not be reversed on the
basis of this change in policy. The evidence of others under
oath may be accepted to establish frequency of relapses or
recurrences over a period of 1 year only, from date of last
medically confirmed relapse or recurrence in service or
subsequently. 38 C.F.R. § 4.88b (prior to August 30, 1996).
The second note states that when evaluations are based on
frequency of recurrences or relapses only, they will be
assigned for a period of 1 year only from date of discharge
or date established by medical evidence of record. At the
expiration of this period, if medical evidence warranting an
extension is not of record, the veteran will be notified that
his compensation will be discontinued unless he submits
evidence from a physician showing recurrent attacks or other
disabling effects of malaria. After a malaria rating has run
24 months, an extension, if warranted, will carry ending date
at expiration of 36 months from initial date of compensable
rating. When this rating is assigned, veteran will be
notified of ending date and of requirement that, to have
rating continued or resumed after that date, he must report
to Department of Veterans Affairs hospital, or outpatient
clinic, or to a Department of Veterans Affairs fee-basis
physician during an actual relapse of the disease. Following
the expiration of the 36 months' period and the veteran's
compliance with the requirement to report as indicated in
this note, a prepared slide of the veteran's blood smear will
be read in the local Department of Veterans Affairs
laboratory, and, if the interpretation is positive, the
prepared slide will be mailed in a suitable container
addressed to the Director, Compensation and Pension Service,
with proper identification of the veteran, including C-number
and time and place of smear, before further acceptance of the
diagnosis of malaria for rating purposes. Id.
Under the new criteria, a 100 percent rating for malaria is
assigned when there is an active disease process. Relapses
must be confirmed by the presence of malarial parasites in
blood smears. Thereafter, malaria is to be rated as
residuals such as liver or spleen damage under the
appropriate system. 38 C.F.R. § 4.88b, Diagnostic Code 6304
(August 30, 1996).
The veteran has not been given the new regulations nor has
his disability been evaluated hereunder. And since the new
regulations take into consideration the relative liver
damage, this assumes additional meaning given the grant by
the Board herein of service connection for hepatitis.
Under governing law, a disability which has been continuously
rated at or above any evaluation of disability for 20 or more
years for VA compensation purposes may not be reduced except
upon a showing that such rating was based on fraud, which is
certainly not the situation here. See 38 U.S.C.A. § 110; 38
C.F.R. § 3.951(b).
The RO, in a recent SSOC, addressed the issue of rating the
veteran's malaria partly on the basis that while revisions
had taken place in the schedular criteria he had a
"protected" rating so apparently nothing further needed to
be done.
However, since that rating is and has long been at zero
percent, and since the concept of protection is pertinent
only in the case of a compensable rating which has been
assigned for a significant period of time, in this context,
the factor of regulatory "protection" has no relevant
meaning.
It is also unclear whether, particularly in the context of
the veteran's overall mental health handicaps, and the
revised regulations as to mandatory due process, he fully
understands what is required for his remaining claims.
The Board has no option but to remand the case for further
development. The case is remanded for the following:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded.
Kutscherousky V. West, 12 Vet. App. 369
(1999). If he has been treated at any
time since service for prostate disorders
including but not limited to cancer, he
should provide such records, and the RO
should assist in obtaining same. He also
should provide all pertinent information
as to care for liver and malaria related
symptoms for which he may have been
treated recently, and these records
should also be acquired, with the help of
the RO.
All of the veteran's VA clinical records
including relating to fevers, liver
problems and/or cancer should be added to
the claims file.
2. The veteran should be examined by
pertinent VA specialists to determine the
nature of prostate problems and/malaria,
and whether he has prostate cancer. All
necessary laboratory and other testing
should be accomplished. The claims
folder and all evidence should be made
available to the examiners prior to their
evaluation of the case.
3. The RO should then review the case,
and if the decision remains adverse, a
SSOC should be issued, and the veteran
and his representative should be given a
responsible opportunity to respond. The
case should then be returned to the Board
for further appellate review. The
veteran need do nothing further until so
notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs